Total Articles: 142

An employer instituted a no-fault attendance policy which allowed employees’ absence points to be reduced for each 30-day period of “perfect” attendance. An employee sued the company, based on the claim that his intermittent FMLA leave kept him from fully participating in that program.

In an August 8, 2019 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) shed some light on what counts as “caring for” a family member under the FMLA. In Opinion Letter FMLA2019-2-A, the WHD found that a parent was entitled to take intermittent FMLA leave to attend a meeting at her child’s school to discuss the child’s Individualized Education Program (“IEP”). Such meetings were held four times per year and were attended by a number of professionals, including a speech pathologist, school psychologist, other therapists, teachers and school administrators. The parent had been told by her employer that attendance at these meetings was not covered by the FMLA.

On August 8, 2019, the Department of Labor (DOL) issued an opinion letter confirming that a parent is entitled to time off under the Family and Medical Leave Act (FMLA) to attend a meeting at school to discuss his or her child’s Individualized Education Program (IEP).

On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”

On August 8, 2019, the U.S. Department of Labor announced that it issued three new opinion letters. The letters cover issues related to the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). Here’s a brief summary of each letter:

In an eye-opening opinion letter issued earlier today, the U.S. Department of Labor confirmed that parents attending certain school meetings for the benefit of their children are entitled to FMLA leave for their absences. The agency concluded that the need to attend school meetings to discuss individualized education programs for children with serious health conditions triggers intermittent FMLA leave protection. Employers should make note of this opinion and revise their family leave policies and practices as necessary in response.

Employees who take FMLA leave may be required to comply with the employer’s usual and customary notice and procedural requirements for requesting leave. If the employee does not follow these requirements, the employer may delay or deny FMLA-protected leave. But what happens if the employer’s policy has different notice requirements for FMLA leave than for other time off? What if the FMLA requirements are more burdensome than the requirements for non-FMLA leave? In Moore v. GPS Hospitality Partners IV, LLC, etc., the United States District Court for the Southern District of Alabama tackles this issue (S.D. Ala. June 3, 2019).

Remember when I told you a few months ago that employers can and should consider requiring that employees make two calls to request FMLA leave? For instance, you might require one call to the supervisor to report the absence, and a second call to Human Resources (or your third party administrator) to request FMLA leave.

If the Department of Labor has anything to say about it, employers may soon get a bit of a reprieve when it comes to dealing with the administrative and compliance difficulties associated with the Family and Medical Leave Act. In a May 21 announcement, the agency’s spring regulatory agenda – highlighting its plans for the coming year and beyond – contained a noteworthy entry calling for information to help revise the statute’s regulations to help “reduce administrative and compliance burdens on employers.” What do employers need to know about this impending development, and how might they influence this process to their benefit?

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 23rd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

On May 6, 2019, the U.S. District Court for the Eastern District of New York denied summary judgment on a Family and Medical Leave Act (FMLA) retaliatory transfer claim. The court found that the employer’s explanation for eliminating the plaintiff’s position while she was on leave, the timing of the decision, and remarks made during the plaintiff’s FMLA absence raised a triable issue of fact as to whether the plaintiff’s transfer was in retaliation for her exercise of FMLA rights. Ottley-Cousin v. MMC Holdings, Inc., No. 16-CV-00577 (MKB).

Employers frequently wonder when to pay bonuses to employees on leave under the Family and Medical Leave Act (FMLA). Do employees who do not meet certain goals due to leave qualify for such bonuses? The FMLA regulations provide:

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 22nd blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Have you been hearing a lot about paid family leave (PFL) lately? For those in the HR world, you may feel like the subject is hitting you from all sides with talk of legislation at the federal level and several states creating new PFL programs or expanding existing ones.

In the second episode of this two-part series, John Stretton and Rachel Mandel discuss the complexities surrounding the Family and Medical Leave Act and the Americans with Disabilities Act, including no fault attendance policies, benefits issues, suspected leave fraud, and other challenging situations.

Employers may not delay designating paid leave as Family and Medical Leave Act (FMLA) leave or permit employees to expand their FMLA leave beyond their 12-week entitlement, according to a new opinion letter from the US Department of Labor (DOL).

On March 14, 2019, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued an opinion letter addressing the DOL’s position on: (1) whether an employer can delay designating paid leave as Family and Medical Leave Act (FMLA) leave; and (2) whether an employer can expand an employee’s FMLA leave beyond the statutory 12-week (or 26-week) entitlement. Simply put, the DOL answered both in the negative.

In the global economy, it is not unusual for U.S. multinational companies to have employees working overseas. Overseas employment arrangements require employers to navigate a variety of complex legal issues – some of them leave related. For example, what happens if an overseas employee has a medical condition that causes them to miss work?

There seems to be growing momentum in Washington, D.C. to establish a national paid leave program, but – as with most things in the nation’s capital – there seem to be differing views on how to accomplish this stated goal of both political parties. Although the White House unveiled a budget proposal on March 11 calling for the establishment of a paid parental leave program, that $750 million funding wish aims for the creation of paid leave programs at the state level that are “most appropriate for their workforce and economy.” Meanwhile, leaders from both parties have recently unveiled their own plans to create sweeping federal paid leave programs – one of which goes beyond parental leave.

On March 14, 2019, Keith Sonderling, the acting administrator of the Wage and Hour Division (WHD) of the Department of Labor (DOL) issued an opinion letter clarifying the DOL’s position on designating and taking leave under the Family and Medical Leave Act (FMLA) and placing the department at odds with the Ninth Circuit’s Escriba decision.

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 21st blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

An employee seeking the protection of FMLA leave must give adequate and timely notice of the need for leave. In situations where the leave is due to a qualifying reason for which the employer previously provided the employee FMLA leave, the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.

On January 8, 2019, the U.S. District Court for the Eastern District of Arkansas issued an opinion and order granting summary judgment to an employer, finding the employer did not violate the Family and Medical Leave Act (FMLA) by discontinuing an employee’s shift differential due to absences necessitated by FMLA leave. Flowers v. McCartney, No. 4:17CV00604.

“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. Up until now, the most common mistakes were addressed in this blog. Now that we have hit the twentieth post in this series, we are going to dig a bit deeper into the FMLA regulations to address discrete mis-steps that can result in legal liability.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the nineteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

In the first episode of this two-part series, John Stretton and Rachel Mandel discuss the complexities surrounding the Family and Medical Leave Act and the Americans with Disabilities Act, including the interplay between the two laws and best practices for effectively managing leaves of absence in complicated situations.

Employees are not eligible for leave under the federal Family and Medical Leave Act (FMLA) unless, among other things, they have worked for a covered employer for at least 12 months. It is also a matter of common sense that only employees who are actually eligible for FMLA leave can assert a claim for interference with those rights. Or is it? What if human resources (HR) tells an employee to take leave before he or she is eligible, not to worry about his or her job, and that it would approve the FMLA leave? The U.S. District Court for the Eastern District of Wisconsin recently confirmed that HR assurances like these can give rise to a viable FMLA interference claim, even before an employee is eligible for leave. Reif v. Assisted Living by Hillcrest LLC d/b/a Brillion West Haven, No. 18-C-884 (November 6, 2018).

Since the FMLA came into existence, employers have been advised, where possible, to run FMLA concurrently with other leaves. Doing so prevents leave stacking. When reviewing FMLA policies, a common oversight we see is how employers handle the use of paid leave during FMLA. While the policies require employees to use earned vacation, sick or PTO time concurrently with FMLA leave, some overlook a nuance in the FMLA regulations that prohibits employers from requiring employees to use paid leave during FMLA.

Executive Summary: The U.S. Department of Labor (DOL) released new Family and Medical Leave Act (FMLA) notices and certification forms on September 4, 2018. The new forms are valid until August 31, 2021, and are available for download from the DOL Website. Notably, the DOL did not make any material changes to the prior forms; however, employers should begin using the updated forms immediately. While employers are not required to use the DOL forms, their use is recommended and can assist with the request and award of Family and Medical Leave (FML), specifically:

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

The Family and Medical Leave Act (FMLA) continues to present challenging questions for employers. In this episode, Keith Kopplin and Sarah Platt of our Milwaukee office walk through some of employers’ most frequently asked questions on the FMLA, from when employers can ask for a medical certification to how to handle suspected FMLA fraud.

On September 24, 2018, the IRS issued updated guidance in Notice 2018-71 (the Notice) on Internal Revenue Code section 45S, the business tax credit for employers that provide paid family and medical leave (the Credit). Under the Credit—which is in effect for calendar years 2018 and 2019 only—an employer that provides paid family and medical leave may claim a credit based on an employee’s qualifying wages.

The U.S. Department of Labor’s Wage and Hour Division (WHD) released a new opinion letter concerning the Family and Medical Leave Act (FMLA) and “no-fault” attendance policies on August 28, 2018. Employers may want to consider this opinion letter when drafting or reviewing their attendance policies.

On September 4, 2018, the U.S. Department of Labor’s (DOL) Wage and Hour Division released a new set of Family and Medical Leave Act (FMLA) notices and certification forms. These forms include the Notice of Eligibility, Designation Notice, and Certification of Health Care Provider. The forms are available on the DOL’s website.

On September 4, 2018, the U.S. Department of Labor’s Wage and Hour Division released the long-awaited new Family Medical Leave Act notices and certification forms. The new forms are now available for download from the DOL website.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the seventeenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

With the increasing trend of telecommuting employees, it is not uncommon for a company to have small numbers of employees working from remote locations in various states. It is important that employers understand how FMLA eligibility is determined for remote workers. Some incorrectly believe that a work-at-home employee cannot qualify for FMLA if the home from which they work is not in proximity of 49 other company employees or within 75 miles of a company worksite.

Does your inbox always seem full of leave requests when it’s time for kids to go back to school? The start of the school year can be a very busy and stressful time of year for many parents and guardians, which may translate into more leave issues for employers. For many employees, back-to-school-time means adjusting their schedules to include parent-teacher conferences, the start of sports seasons, class parties, volunteer activities and school assemblies.

Employers with 50 or more employees have known for years they are required to give employees Family Medical Leave under appropriate circumstances. However, they often struggle with what to do when an employee exhausts the twelve weeks of unpaid leave but is still not able to return to work. Oftentimes, employers discharge the employee when the employee is unable to return, thinking they are in the clear because FMLA ran out. This is a mistake; the employee may be entitled to additional leave under the Americans with Disabilities Act (ADA) or various state or local laws that afford protections for workers with disabilities.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the sixteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fifteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Employees who take leave to care for a family member often have the ability to continue working during their leave if the caretaking obligations do not consume all of their time. If the employee asks to work limited hours while taking time off to care for a family member that is generally treated as a request by the employee for reduced schedule or intermittent leave. But what happens if the employee requests a continuous leave and the employer tells the employee she can continue working a limited schedule if she wants to? What if the employee interprets the “offer” as a “request?” This issue was recently addressed by the Fifth Circuit Court of Appeals in D’Onofrio v. Vacation Publications (5th Cir. Apr 23, 2018).

An alleged threat by a former Southwest Airlines employee, “that he wished he could order a black trench coat so that he could bring his shotgun to work,” was enough to derail the claim that his employer terminated him in retaliation for taking intermittent leave under the Family and Medical Leave Act (“FMLA”). In affirming the District Court’s grant of summary judgment in favor of Southwest, the April 18, 2018 opinion by the U.S. Court of Appeals for the Fifth Circuit agreed the airline had established a legitimate non-discriminatory reason for discharging the employee, and that he had failed to prove that the reason was pretextual or false.

The IRS has issued FAQs to provide guidance to employers relating to portions of the newly enacted Tax Cuts and Jobs Act of 2017 that created the Paid Family and Medical Leave Tax Credit. The tax credit, provided in Internal Revenue Code section 45S, allows eligible employers to claim a general business tax credit up to 25 percent of the wages paid to qualifying employees when such employees take family and medical leave.

A North Carolina district court recently declined to dismiss a failure to accommodate and wrongful termination action brought by the EEOC on behalf of a patient accounts representative in EEOC v. Advance Home Care, Inc. (“Advance”). The plaintiff was discharged after she could not return to work without restrictions following exhaustion of her FMLA leave. The court held that the EEOC’s complaint adequately alleged that the employee was qualified for her position and linked Advance Home Care’s alleged failure to accommodate to the discharge.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fourteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

In the recent case of Guzman v. Brown County, No. 16-3599 (March 7, 2018), the Seventh Circuit Court of Appeals affirmed a district court’s grant of summary judgment to an employer on claims brought under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

Sometimes what you don’t know can help you. In Guzman v. Brown County, a 911 Dispatcher who was fired after being late repeatedly had her FMLA interference and retaliation claims sent to dreamland by the Seventh Circuit Court of Appeals. The Appeals court held that the moribund claim should stay that way because the Dispatcher could not show that she suffered from sleep apnea at the time of her termination or that the supervisor who made the decision to terminate her employment knew of her claimed history of apnea when he reached that conclusion. The Court also declined to resurrect her ADA claims for the same reasons.

The Family and Medical Leave Act (FMLA) recently celebrated its 25th anniversary, but federal action regarding paid family leave has remained very much elusive. And that inaction has led a growing number of states and cities to take action and go well beyond the FMLA.

Under new Section 45S of the Internal Revenue Code, employers that voluntarily offer qualifying employees up to 12 weeks of paid family and medical leave annually pursuant to a written policy may claim a tax credit for a portion of the wages paid during leave. The leave benefit must satisfy the requirements in Section 45S.

Rarely do human resources professionals and employment lawyers contribute to an employer’s bottom line. But the new federal tax credit for employer-provided paid family and medical leave offers a unique opportunity to do just that and help reduce your company’s tax liability. The recently-enacted Tax Cuts and Jobs Act provides a tax credit to employers that voluntarily offer paid family and medical leave. Our Jackson Lewis colleagues in the Benefit Law practice group recently summarized this new law. We have taken it a step further and created a Paid Leave Tax Credit Calculator for employers to quickly estimate the potential tax savings their voluntary paid leave programs can generate. Remember that this law provides a tax credit; that means it’s a dollar-for-dollar reduction in the company’s income tax obligation.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the thirteenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the twelfth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Employers often assume that the Family and Medical Leave Act (FMLA) allows them to terminate employees who fail to return to work after any leave that has a specified end date, or who have exhausted their leave. Depending on the facts, this assumption might be correct. However, employers should pause—and take into account a few considerations—before drafting a termination letter as the employees might be entitled to additional leave time under the FMLA, or possibly, the Americans with Disabilities Act (ADA). As discussed below, recent cases decided under the FMLA and the ADA may impact this inquiry.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eleventh in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Navigating leave issues can be difficult: There are several statutes that provide employees with different, yet sometimes overlapping rights, and every situation is unique. Employers must ensure that members of management and those responsible for addressing leave situations are aware of the applicable legal requirements and trained on them.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the tenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Navigating employee leave issues can be a daunting feat for in-house counsel and human resources departments. One challenging and oft-overlooked situation rife with the potential for legal issues involves contact between employers and employees who are out on leave under the Family and Medical Leave Act (FMLA).

Navigating the waters of employee leave is tricky business for employers. At the federal level, FMLA requires “covered” employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. The question of the appropriate causation standard that must be proven in an FMLA claim is not unanimous among the Circuit Courts. In Woods v. START Treatment & Recovery Centers, the Second Circuit put its stake in the ground.

The Family and Medical Leave Act (FMLA) has been around since 1993. And while there are a lot of requirements and regulations for employers to navigate, the basic obligations of the law are well known for the most part, and there is plenty of information and guidance available to help make FMLA compliance manageable. Despite this, employers continue to make easily-avoidable errors. Here are 10 ways an employer can bungle its FMLA policy and practices.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the ninth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

The American Enterprise Institute (AEI)-Brookings Working Group on Paid Family Leave has issued a new report analyzing the costs and benefits of implementing a national paid leave program, and laying out a compromise proposal for lawmakers to consider.

"What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the eighth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Properly identifying the decisionmaker in an employment discrimination case is important because it is the intent of the decisionmaker that determines whether an adverse employment action was motivated by a discriminatory or retaliatory animus. Where an employer can show that the decisionmaker was free of such animus—either because the decisionmaker was not aware of the employee’s protected status or engagement in protected activity—the employee’s claim should fail.

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the seventh in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

It’s a scenario that frustrates many employers. An employee with extensive intermittent FMLA absences, possibly including absences for different covered reasons, is also absent for many unspecified or unprotected reasons which lead to progressive discipline. The employee’s absences eventually reach the point of warranting termination and the employee does not provide additional medical information to address the unprotected absences. The employer is prepared to proceed with termination but is concerned about whether it did enough to track protected absences and communicate with the employee to avoid FMLA interference and retaliation claims.

Most employers have procedures in place to ensure that an employee who takes leave under the Family and Medical Leave Act (FMLA), whether as a reduced schedule or an extended leave of absence, retains his or her eligibility under the employer-sponsored health plan. But many employers have gaps in their procedures when an employee’s reduced schedule or leave of absence occurs when the employee is not yet eligible for FMLA leave or after FMLA leave has been exhausted. Typically, the gap in procedures exists when the non-FMLA reduced schedule or extended leave arises from a work injury or as an accommodation under the Americans with Disabilities Act (ADA).

How many employers have had this situation arise? An employee requests and receives FMLA leave. While they are out, the employee’s supervisor needs to locate a document, find out the status of a project the employee was working on, or a crucial question comes up that only the employee on leave can answer.

During his campaign, President Trump proposed a plan to offer six weeks of paid maternity leave to mothers who give birth. The program would be funded through the unemployment compensation system. The Family and Medical Leave Act provides unpaid job protection, but it does not provide for paid leave. Earlier this week, President Trump and his daughter, Ivanka Trump, who has been a proponent of expanding paid maternity benefits programs, reportedly participated in a roundtable discussion with Canadian Prime Minister Justin Trudeau regarding women in the workforce.

On Tuesday, February 7, 2017, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Rosa DeLauro (D-Conn.) reintroduced the Family And Medical Insurance Leave (FAMILY) Act, which would create a national system of paid leave for employees. This is the third attempt in the last five years by these same legislators to create federal paid leave. But, with Republicans in control of the Executive and Legislative branches of our government, does the FAMILY Act stand a chance of becoming reality?

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the fifth in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. This is the second in a monthly series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

On October 31, 2016, the Fourth Circuit Court of Appeals issued a decision that confirmed an employer’s right to take adverse employment action against an employee who fraudulently uses FMLA leave. In Sharif v. United Airlines, Inc., Case No. 15-1747 (4th Cir., Oct. 31, 2016), the Court upheld United Airlines decision to discharge Masoud Sharif for fraudulently using FMLA leave, finding that “[t]o hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.”

An employer recently claimed a significant victory in a case brought by a former employee who believed he had been unfairly targeted for termination because of his Family and Medical Leave Act (FMLA) leave request. The federal court of appeals decision is significant because it provides support for those employers who wish to root out fraudulent abuse of FMLA leave from their workplaces, offering a blueprint for how to navigate such a situation.

The U.S. Department of Labor (DOL) is looking to collect data from employers and employees regarding their respective “need for” and “experience with” the Family and Medical Leave Act (FMLA). The data collection period is expected to occur in 2017 and 2018. From employees, the survey will seek information regarding “use of leave, need for leave, and [] experience with FMLA-eligible leave.” For employers, the surveys will seek information regarding “employee use of leave and [] experience managing FMLA leave.”

“What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration. Over the upcoming months, we are going to highlight some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Can you ask employees to waive FMLA rights? Depending on whether those rights are “prospective” or not, the answer might be “Yes,” at least in Eleventh Circuit. The Eleventh Circuit recently issued a decision interpreting, for the first time, the meaning of the term “prospective” as applied to the Family and Medical Leave Act’s (FMLA’s) prohibition of the waiver of prospective FMLA rights. In the past, when clients would ask about having an employee waive their FMLA rights in a separation agreement or settlement agreements, we would tell them, “Yes…but…you would arguably have to have it approved by the Department of Labor (DOL) or a court” for the release to be truly valid and not subject to being voided.

A healthcare employer’s primary mission is to provide appropriate medical care and treatment to patients. In order to provide such care, healthcare companies rely on the steady and committed presence of competent, licensed professionals who are ready, willing, and able to perform the tasks necessary to make sure patients’ needs are met.

A former employee who the Alabama Department of Labor had ruled in an unemployment hearing was fired lawfully for misconduct was not precluded, or estopped, from later claiming she was fired unlawfully in retaliation for taking Family and Medical Leave Act leave, the U.S. Court of Appeals for the Eleventh Circuit has held. Simmons v. Indian Rivers Mental Health Ctr., No. 15-11658, 2016 U.S. App. LEXIS 10663 (June 13, 2016) (unpublished).

In a recent decision, Graziadio v. Culinary Institute of America, the Second Circuit held that a Director of Human Resources could potentially be individually liable to a former employee for Family Medical Leave Act (“FMLA”) violations.

As employers covered by the Family Medical Leave Act (FMLA) can attest, administering the FMLA’s regulatory framework at the employee level can consume substantial time and resources. Despite the expense associated with applying the complex and often counterintuitive regulations, the U.S. Department of Labor takes the position that “[t]he FMLA is working.”

The US Department of Labor (DOL) has released an Employer Guide to assist employers in complying with the Family and Medical Leave Act (FMLA). In addition, the DOL has released a new version of the FMLA workplace poster. However, an employer that continues to post the February 2013 version of the poster will remain in compliance.

Had a great vacation? Post it on Facebook. Fun surfing? Post that too. Swam some laps while on FMLA leave due to a shoulder injury? You should probably keep that one to yourself. Employers continue to struggle with balancing their own marketing interests with the interests of employees in maintaining a social media presence. Of course, an employee’s use of social media may not always comport with an employer’s interests as identified in its social medial protocols or otherwise conflict with accepted practices. Take for example the recent decision from the Middle District of Florida.

Alabama is now a kibosh state, joining about a dozen others that prohibit municipalities from passing a law requiring employers to provide employees with paid or unpaid leave. The Alabama law, HB 174, also bars municipalities from requiring employers to pay employees for any leave required by federal law, e.g., the Family and Medical Leave Act.

The 8th U.S. Circuit Court of Appeals has determined that a customer service representative who was fired for performance issues during the same period of time in which she requested leave under the Family and Medical Leave Act (FMLA) to care for her child could not support her FMLA discrimination claim. Burciaga v. Ravago Americas, LLC, 8th Circ., No. 14-3020, July 2, 2015. The court’s dismissal of the claim was based on the fact that the employee was unable to show that the reason set forth by the company for her discharge — multiple shipping errors within a 17 day period – was a pretext for discriminatory treatment based on her request for leave.

In support of the Obama Administration's commitment to expand American workers' access to paid leave, the US Department of Labor (DOL) announced this week that it is offering $1.25 million in grants to help state and local policymakers study the feasibility of developing paid leave programs on a national scale. So far, California, Connecticut, Massachusetts, New Jersey, Rhode Island, the District of Columbia and several cities have passed laws allowing paid family and medical leave or earned sick days. While this may indicate an emerging trend, the US still lags far behind most other industrialized nations.

Executive Summary: Effective March 27, 2015, the Family and Medical Leave Act (FMLA) is revised to define a "spouse" to include married, same-sex partners regardless of the state in which they reside. This change gives same-sex couples the same FMLA rights and protections as heterosexual couples.

On February 25, 2015, the U.S. Department of Labor (DOL) finalized a new rule (which was published in the Federal Register) expanding protections under the Family and Medical Leave Act (FMLA) for same-sex married couples.

Parental leave laws can vary greatly from country to country. Multinational employers must be aware of the parental leave laws of all the jurisdictions in which they have employees and may need to modify their policies as one policy may not accommodate the requirements of all jurisdictions. Tiffany Downs and Scott Wagner, attorneys in FordHarrison's Employee Benefits practice group, compare parental leave laws in the U.S., UK, Italy and Brazil and discuss several action items for employers in Parental leave laws in the U.S. and abroad: Evolving international standards, a two-part article published by InsideCounsel magazine. The article is available on FordHarrison's Knowledge Base here (part 1) and here (part 2).

An employee who was replaced by an outside consultant while on medical leave and later discharged recently won nearly $103,000 plus 100% liquidated damages, attorney’s fees and prejudgment interest for violations of the federal Family and Medical Leave Act (“FMLA”). This is a costly reminder that employers must take care when dealing with employees who go on leave.

On January 28, 2014, the Seventh Circuit Court of Appeals agreed with a district court and found that an employee’s trip to Las Vegas with her terminally-ill mother qualified as leave under the Family and Medical Leave Act (FMLA). See Ballard v. Chicago Park District, No. 10-C-1740, January 28, 2014.

The Family Medical and Leave Act (FMLA) provides job security to employees who require time away from work due to illness or the need to care for family. By some accounts, the FMLA is one of the most difficult employment laws for an employer to administer and therefore is a risk management “legal labyrinth.” In particular, the seemingly simple task of calculating the duration of FMLA leave can be daunting.

Executive Summary: While most companies are aware of the liability they may face if they violate the FMLA, a recent decision from the Eleventh Circuit serves as a reminder of just how important it is for employers to train human resources personnel, as well as managers and supervisors, on how to properly handle leave requests. In Dawkins v. Fulton County Gov't, (11th Cir. Sept. 30, 2013), an employee sought to bring a claim of FMLA retaliation based on a manager's one word response of "Approved" to an e-mail requesting both emergency and FMLA leave, even though she did not comply with the employer's medical certification requirements.

According to the 4th U.S. Circuit Court of Appeals, evidence of previously unknown poor performance is sufficient basis for an employee’s, even if that evidence is discovered during that employee’s Family and Medical Leave Act (FMLA) leave.Mercer v. The Arc of Prince Georges County, Inc., 4th Cir., No. 13-1300, unpubl., July 11, 2013.

On June 26, 2013, the Supreme Court of the United States struck down the Defense of Marriage Act’s (DOMA) provision defining marriage as between one man and one woman. Following the United States v. Windsor decision, President Obama directed all federal agencies to “swiftly” review all federal statutes impacted by the decision and “smoothly” implement changes to the thousands of federal laws impacted.

In a landmark decision today, United States v. Windsor, the Supreme Court decided by a 5-4 decision that § 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional as a deprivation of the liberty of the person protected by the due process and equal protection clauses of the Fifth Amendment.

Fisher & Phillips LLP announced today that it has developed a Smartphone and Tablet app that allows employers to calculate certain FMLA leaves of absence. The Beta FMLA Leave Calculator app will allow human resource professionals and other managers to calculate basic leave requests and determine how much FMLA leave an employee has available. This Beta version of the iPhone and Android app will be introduced during the SHRM Annual Conference and Exposition in Chicago June 16-19.

The legitimate and beneficial purposes of the Family and Medical Leave Act (FMLA) are undeniable. The law provides employees who have a serious health condition, are caring for a family member with a serious health condition, or are undergoing certain major life events such as the birth or adoption of a child, a safety net in the form of job-protected leave.

Based on the number of “Facebook” decisions from the National Labor Relations Board over the past two years, most employers understand that when employee Facebook postings constitute “protected activity” under the National Labor Relations Act, the postings can be legally protected. However, the FLSA is not the only federal law that can be implicated in Facebook-related firings. A federal district court in Michigan recently held that a hospital that fired an employee while she was on medical leave did not violate the Family and Medical Leave Act (FMLA), because the employee had posted - on her Facebook page - photos and text about vacation activities that were inconsistent with her medical restrictions, and then lied about those activities. Lineberry v. Richards, E.D.Mich., No. 2:11-13752, February 5, 2011.

On February 5, the Family and Medical Leave Act (FMLA) turned 20 years old. Pomp and circumstance aside, the FMLA has certainly been a significant development in employment law over the past two decades. Although the U.S. Department of Labor reports that recent survey results indicate that “85% of employers report that complying with the FMLA is very easy, somewhat easy, or had no noticeable effect,” and that “misuse of the FMLA is rare,” administering the FMLA’s regulatory framework at the employee level can consume substantial amounts of an employer’s time and resources.

On February 6, 2013, the U.S. Department of Labor issued its final rule, implementing two important areas of expansion in the Family Medical Leave Act (“FMLA” or “the Act”). The final rule was entered in conjunction with the 20th anniversary of the signing of the Act. Because the effective date for the final rule is March 8, 2013, it will be imperative that all entities covered by the FMLA are aware of the changes and timely adjust their policies for compliance.

As more fully explained in our previous Legal Alert, DOL Issues Final Rule Implementing Statutory Amendments to the FMLA, http://www.fordharrison.com/9011, the U.S. Department of Labor (DOL) recently issued new Family and Medical Leave Act (FMLA) regulations that take effect on March 8, 2013. Most of the new regulations relate to the FMLA's military leave provisions and the Airline Flight Crew Technical Corrections Act and make other minor changes and clarifications. The regulations also require covered employers to post a new, updated poster by March 8, 2013.

The Family and Medical Leave Act (FMLA) entitles an employee with a serious health condition to 12 workweeks of job-protected leave during any 12-month period. The employee may sue if the employer interferes with the employee’s leave or reinstatement.

Executive Summary: The Department of Labor (DOL) published a Final Rule implementing the changes to the Family and Medical Leave Act (FMLA) made by the 2010 National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The AFCTCA amended the FMLA to incorporate a special eligibility provision for airline flight crewmembers and flight attendants.

The Family and Medical Leave Act (FMLA) entitles eligible employees to twelve weeks of unpaid leave each year for certain medical issues for themselves or immediate family members. Employers are prohibited from discriminating or retaliating against an employee who exercises FMLA rights.

The Wage and Hour Division of the Department of Labor (DOL) has announced that it will host a free webinar on June 27, 2012 at 2:00 pm EST to help workers and employers understand the Family and Medical Leave Act (FMLA). According to the DOL, participants will have the opportunity to submit questions that will be answered by an FMLA expert from the department. Those who wish to participate can register on the agency's web site at: http://www.dol.gov/whd/fmla/ (click on the FMLA Webinar Page).

A federal appellate court recently held that remarks allegedly made by a law firm's human resources director could be "direct evidence" of pregnancy discrimination and a violation of the Family and Medical Leave Act (FMLA). According to the Seventh Circuit Court of Appeals, such evidence falls outside of the "hearsay" objection that might otherwise keep it from being presented to a jury. Makowski v. SmithAmundsen LLC, No. 10-3330, Seventh Circuit Court of Appeals (November 9, 2011).

In an unpublished opinion, the 6th U.S. Circuit Court of Appeals has held that an employee’s appraisal score, given during a Reduction in Force (RIF) review, that was significantly lower than an annual performance review score given only 20 days earlier might support a jury’s finding that the true reason for the employee’s layoff was her requested FMLA leave.

This two-part article analyzes the new military family leave provisions of the Family and Medical Leave Act (“FMLA”),
as amended in 2008 and again in 2009. The first installment explored the “Active Duty Family Leave” for employees who
experience a “qualifying exigency” arising out of the fact that a family member has been called to active duty. This
second installment analyzes the leave available for an employee to care for a military family member who is injured in the
line of duty and, specifically, how this “Injured Service Member Leave” compares with the traditional FMLA leave to
care for a family member with a serious health condition.

The Louisiana Army National Guard’s 3,000-member 256th Infantry Brigade Combat Team is preparing for a 12-month deployment to Iraq. On January 6, 2010, the Louisiana National Guard held a deployment ceremony in White Castle, Louisiana, for its 256th Brigade Special Troops Battalion. The ceremony was reportedly attended by hundreds of family members and friends—and those family members were likely eligible for leave under the Family and Medical Leave Act’s new military leave provisions for their attendance at the deployment ceremony. The Battalion will train in Mississippi for six to eight weeks, after which they will have four days of leave to return home before flying to Iraq. Their family members may also be entitled to FMLA leave for that four-day leave period. In light of the increased troop deployments to Afghanistan and Iraq, it is critical for employers to understand the new military leave provisions of the FMLA.

The U.S. District Court for the Middle District of Pennsylvania recently re-visited a case on remand from the Third Circuit, and allowed an insurance company employee’s claims of FMLA interference and retaliation to go forward. Erdman v. Nationwide Insurance Co., M.D. Pa., No. 1:05-cv-0944, 1/15/10. The case is noteworthy on more than one point: first, the 3d Circuit remanded the case on a finding that the employee’s hours worked at home might be counted toward the 1250 minimum hours needed to be eligible for FMLA leave; second, that evidence of ongoing “antagonism” between the company and the employee might form the basis of FMLA retaliation; and finally, that a request for FMLA leave may be viewed as a “protected activity” under Pennsylvania’s Human Relations Act.

On October 28, 2009, President Barack Obama signed the National Defense Authorization Act (NDAA) for the 2010 Fiscal Year, which includes provisions that expand the military leave entitlements of the federal Fam-ily and Medical Leave Act (FMLA). The NDAA amends both the "qualifying exigency" and military caregiver leaves that became effective in January 2008.

Although sometimes lost in the buzz over health care reform and union card-check legislation, over the past several months, Congress has also been considering a slew of aggressive proposals designed to expand various aspects of the Family and Medical Leave Act (FMLA). While these changes could affect employers in all industries, retailers should be especially concerned due to the possible lowering of requirements for coverage of part-time employees.

A teacher approaches you at the beginning of the school year and tells you that she is pregnant and will be needing time off in early April for the birth of her baby. She plans to return for the last two weeks of the term. Another employee, your football coach, approaches you and states that his father, an Army Sergeant Major, suffered a serious injury while in Iraq and he needs one day off each week for the next eight weeks to assist in his father's planned medical treatment. What are the school's obligations in these situations?

A federal appellate court recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA.

The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an employee for failing to follow a company policy requiring employees to call in each day during an extended absence. This ruling is notable because the employee previously had been granted leave under the FMLA.

A federal appellate court recently dismissed a lawsuit brought by an employee who was working at her husband's lawn-mowing business while on intermittent medical leave from her employer. According to the Seventh Circuit Court of Appeals, the employer did not violate the Family and Medical Leave Act (FMLA) by terminating the employee because it had an "honest suspicion" that she was misusing her FMLA leave.

The U.S. Department of Labor has proposed amendments to the
Family and Medical Leave Act (FMLA) regulations, some of
which will impact physicians. Public comment on the proposed
amendments ended on April 11, 2008. The Department has not
announced when the regulations will be finalized and published,
although it is expected to occur before the end of the Bush
Presidential term of office.

In today's workplace, employees are increasingly looking for opportunities to telecommute. Whether based on a desire to balance family and professional responsibilities, or more recently, to save money at the gas pumps, a rapidly growing number of employees would prefer to work from home. According to a recent Dice Holding study, nearly 40% of information technology workers would accept up to a 10% reduction in salary for the opportunity to work from home. This trend shows no signs of letting up any time soon.

Under the Family and Medical Leave Act (FMLA) a qualified employee is one who has worked for at least 1250 hours during the previous 12 months. In addition, an employer is subject to the FMLA if it has at least 50 employees within a 75 mile radius. Recently, the 7th U.S. Circuit Court of Appeals held that an employee can proceed with state-law claims for breach of contract or promissory estoppel based on handbook language granting FMLA-type leave, even though the employer had less than 50 employees.

Most dealers know that in order to be eligible to request the Family and Medical Leave Act (FMLA) employees must meet three initial conditions: They must work for an employer who employs at least 50 employees within a 75-mile radius; They must have been employed by the employer for at least 12 months; and They must have worked at least 1,250 hours in the twelve months prior to requesting the leave. What many dealer do not know is that the 12 months of employment in #2 need not be consecutive. A dealer in Maine recently learned this the hard way.

Does a charge nurse’s seizure disorder compromise patient safety? Can a nurse with a two-pound lifting restriction perform the essential duties of her job? These questions and others like them often arise in the healthcare industry and the wrong answer could trigger liability not only under the Americans with Disabilities Act (ADA), but also under the Family and Medical Leave Act (FMLA).